9.  The first applicant is a writer and the second is the chairman of the board of directors of the publishing company P.O.L.; the third was the publication director of the daily newspaper Libération. They were born in 1955, 1944 and 1949 respectively and live in Paris.
10.  The first applicant is the author of a book presented as a novel under the title Le Procès de Jean-Marie Le Pen (“Jean-Marie Le Pen on Trial”), published in August 1998 by P.O.L.
11.  The novel recounts the trial of a Front National militant, Ronald Blistier, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. He is defended by a Jewish, left-wing and homosexual lawyer, Pierre Mine.
The novel is based on real events and in particular the murders, in 1995, of Brahim Bouaram, a young Moroccan who was thrown into the Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by militants of the same party. Those militants were convicted in June 1998 after a trial in the Assize Court during which Front National leaders, Mr Le Pen included, declared that the case was no more than a provocation and a put-up job through which the party’s enemies sought to harm it.
The author builds the plot around the lawyer, the main protagonist, who throughout the trial finds himself embroiled in a political debate. At the very beginning he raises the question of Mr Le Pen’s responsibility: “Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?” (page 7). The novel focuses on a number of figures who are characterised by their moral or political positions in relation to the ideology and political party of the far right. The work also seeks to highlight the difficulties and contradictions of certain “anti-racist” stances.
12.  The text on the back cover of the book describes the novel as follows:
“How can Jean-Marie Le Pen be fought effectively? The youth Ronald Blistier, member of the Front National, has committed a cold-blooded racist murder, killing an Arab youth in the open street. The case has caused an outcry and it is generally agreed that Blistier’s trial should really be that of his mentor.
Thirty-year-old Jewish lawyer Pierre Mine is defending the murderer. He has certain ideas about how best to fight Jean-Marie Le Pen.
– Set a trap for Le Pen? But it would backfire on all of us, warns his boyfriend Mahmoud Mammoudi.
Pierre Mine pursues his fight regardless. His strategy is unfathomable. Won’t he become the punchbag of the anti-racists and the champion of those he seeks to defeat? Jean-Marie Le Pen pretends to show him some respect. He is beset with troubles on all sides – it’s as if those who have no real success in their fight against the Front National are nevertheless suspicious of anyone trying a different approach.”
13.  By originating summonses of 20 and 27 November 1998, the Front National and Mr Le Pen brought proceedings against the first two applicants in the Paris Criminal Court for the offence of public defamation against a private individual, as a result of the novel’s publication, under sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. Six extracts from the novel were the subject of particular complaint: those (on pages 10, 86, 105-06 and 136) that were reproduced in a judgment delivered by the Paris Court of Appeal on 13 September 2000 (see paragraph 18 below), and the following two passages:
On page 28 the author attributes the following remarks to Mrs Blistier, Ronald’s mother:
“It might have crossed his mind, but he was never much good at shooting – my husband didn’t like Ronald using his rifle. But maybe the lad was humiliated because he’d never beaten anyone up, when all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates.”
On page 118, concerning a Front National demonstration, the author writes:
“The crowd assembled on Place de la Bastille, now whipped up by their master ranter, mostly consists of youths. If you searched them you’d find handguns by their hundreds. They’re ready for a fight – they’re only too pleased if far-left organisations think it’s a good strategy to confront them. The atmosphere is in some ways one of pre-insurrection, but as the journalists present have observed, the feeling on the side of the democrats is more one of disgust than of panic. A fascist coup d’état isn’t yet on the cards, there is more a fear of gangrene setting in – a social disease that can occasionally be stopped from spreading or curbed temporarily.”
14.  In a judgment of 11 October 1999, the Paris Criminal Court convicted the second applicant of defamation and the first applicant of complicity in that offence, taking account, however, of only four of the six offending extracts, namely those on pages 10, 86, 105-06 and 136 of the book. They were each sentenced to pay a fine of 15,000 French francs (FRF) (equivalent to 2,286.74 euros (EUR)) and ordered jointly and severally to pay FRF 25,000 (EUR 3,811.23) in damages to each of the civil parties, together with the cost of publishing an announcement of the judgment.
In its judgment the court found as follows:
“Whether the publication was defamatory:
It should first be noted that, whilst the author chose to write a ‘novel’, as indicated on the front cover of the book, he portrays, along with a number of fictional characters, an actual and living political figure, namely Jean-Marie Le Pen, and his party, the Front National. In addition, the author announces the subject matter of his work in the title itself, ‘Jean-Marie Le Pen on Trial’. On the back cover he asks the question ‘How can Jean-Marie Le Pen be fought effectively?’ and in the first few lines of the book he raises another question: ‘Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?’ The reader thus immediately becomes aware that the fictional trial is a vector for direct criticism of Jean-Marie Le Pen, especially since the facts described are largely, and obviously, inspired by actual events which have had a great impact on public opinion.
Accordingly, although it is a novel, and although the offending remarks are only made by fictional characters, it can nevertheless be observed that the work seeks to impart clearly expressed ideas and to communicate a certain image of Jean-Marie Le Pen, his party and their behaviour. The classification of the charge cannot therefore be ruled out purely on the basis of the technique used to that end.
The text, regardless of its literary genre, is capable of harming the honour and reputation of the civil parties and it is appropriate to examine each of the offending extracts to establish their meaning and significance and to determine whether, for the charge of defamation to be made out, they are precise enough for the issue of proof to be addressed.
First passage, page 10: To allege that Jean-Marie Le Pen is the chief of a gang of killers – in other words, that he heads a group of murderers – constitutes, in the context of the book, an evidently defamatory allegation of sufficiently precise conduct, reference being made to the racist crime committed by the novel’s protagonist, a young Front National member whose criminal act is said to have been inspired by the ideas advocated by Jean-Marie Le Pen.
It is of no consequence that the crime of ‘Ronald Blistier’ is not real, because the author’s intention is not to write a satire about an impossible event but, on the contrary, to make the reader believe that, given Jean-Marie Le Pen’s ideology, such a scenario is quite plausible and that he would be accountable for it. The story also evokes – inevitably, for the reader – the trial in June 1998 of the Front National billstickers accused of killing a Comorian youth, Ibrahim Ali, in Marseilles. Similarly, when the author, a few passages further on, recounts the killing of a black youth called ‘Julien Thoris’, who is thrown into the Seine during a demonstration at which the Front National is present, the reader is bound to recall the real murder of Brahim Bouaram, whose killers were taking part in a march held by that party.
The precision of the facts described in the offending extract is thus sufficient to constitute defamation against the civil parties, and the facts thus alluded to were susceptible of proof.
Second passage, page 28: The assertion that ‘all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates’ is not clarified by other remarks or illustrated by any given facts. It may stem from the boastfulness attributed to the character in the novel and is too vague to justify prosecution.
Third passage, page 86: The Front National is accused of using violence against those who leave the party. The author has one of his characters warn Ronald Blistier’s lawyer against ‘the Front National’s common strategy’ of ‘battering’ anyone who leaves it (‘to beat you up ... ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house’).
This extract, which concerns facts that are precise and susceptible of proof, namely the attacking or even killing of anyone who dares to betray and leave the party, damages the honour of the Front National.
Fourth passage, pages 105-06: To accuse Jean-Marie Le Pen of making statements ‘with racist overtones that are barely concealed at best’ and to write that ‘from behind each of his assertions looms the spectre of the worst abominations of the history of mankind’ constitutes defamation against him in that he is accused of a form of racism that reminds the reader of the worst atrocities ever perpetrated. The author moreover explains a few lines further on that Jean-Marie Le Pen can put the idea of a racist murder into simple minds like that of Ronald Blistier, who ‘would not have had a gun in his hand and a North African kid at the end of it if Jean-Marie Le Pen had not made it possible’ (p. 106).
Fifth passage, page 118: This passage, which describes the young Front National militants firstly as being whipped up by their ‘master ranter’ and secondly as being armed by the hundreds and of creating an atmosphere of ‘pre-insurrection’, is certainly insulting to Jean-Marie Le Pen, but too imprecise to constitute defamation; the subsequent remarks do not concern the Front National but participants in that party’s demonstrations and cannot therefore be taken into account.
Sixth passage, page 136: Jean-Marie Le Pen is accused of being a ‘vampire’ who thrives on ‘the bitterness of his electorate’ and ‘the blood of his enemies’, and of being a liar, defaming his opponents to protect himself from the accusations against him.
The author develops this image and the term ‘vampire’ by writing, just after the offending passage: ‘... Jean-Marie Le Pen used Ronald Blistier’s life and is now using his death to stir up other Ronald Blistiers, to transform other lost youths into puppets who will have their lives and deaths manipulated by this ruthless puppeteer.’
These allegations about using the life and death of young militants, in driving them to murder and suicide, for personal political ends, are precise and damage the honour and reputation of Jean-Marie Le Pen.
As to the existence of good faith:
Defamatory allegations are, in law, deemed to have been made with the intention of causing harm, but they can be justified if the writer shows that he was acting in good faith.
The court observes in this connection that the author did not simply write a work of fiction. He portrayed to his readers Jean-Marie Le Pen, engaged in his usual activities as Chairman of the Front National, with the intention of criticising him and his party and of challenging their ideas. Mathieu Lindon indeed stated at the hearing that he had made much use of information in the news and, as a result, the reader may not be able to distinguish clearly between fact and fiction, so clear was the intention to associate the situations and remarks with recent events.
Although, in the sphere of political polemics and ideological debate, the greatest freedom of expression must be afforded to the author, that freedom is not unrestricted, and stops when it comes to personal attacks, whether they are made directly by the author or through the intermediary of fictional characters, and is discredited by the distortion of facts and by immoderate language.
Whereas the defence has asserted that this story reflects reality and does not twist it, the documents produced, which are mainly press articles, being devoid of evidentiary value, are insufficient to substantiate the defamatory allegations taken into account by the court concerning the criminal conduct imputed to the civil parties. No relevant judicial decision against them, which might have justified such assertions, was produced in the proceedings, and in the absence of documents the court can only find that Mathieu Lindon distorted the facts to reinforce the hostility of his readers towards Jean-Marie Le Pen and his party.
Furthermore, whilst authors and polemicists are afforded freedom to use a specific register, this does not authorise the particularly excessive remarks that appear in the text.
It cannot therefore be accepted that the defendants acted in good faith and the charge of defamation to the detriment of Jean-Marie Le Pen and the Front National is accordingly made out ...”
15.  The first two applicants appealed against the above judgment in the Paris Court of Appeal. They challenged the finding that the offending extracts were defamatory in nature. They argued that it was simply a work of fiction portraying fictional characters, as the reader could see from the very first page. They also argued that the remarks merely amounted to value judgments about the claimants, reflecting a public debate, treated with distance and irony, about how best to combat the rise of the far right. In the alternative, pleading good faith, they submitted that the ideas of Mr Le Pen and the Front National had not been distorted by the book and its characters, and that the offending passages consisted exclusively of remarks made by the fictional characters without reflecting the ideas of the author, who, for his part, had sought to criticise the strategy adopted by anti-racist associations and left-wing intellectuals in general, in their fight against the Front National.
The applicants relied on Article 10 of the Convention, claiming that this provision precluded any conviction because a work of fiction was entitled to reflect debate as to the moral responsibility borne by the Front National and its leader’s ideas in the commission of racist crimes. They emphasised that the freedom to hold opinions would be infringed if the author of a value judgment were to be penalised on the pretext that he could not prove the pertinence of his opinion, and referred in this connection to the Lingens v. Austria judgment (8 July 1986, Series A no. 103). Lastly, they argued that equally aggressive and defamatory remarks against the civil parties had been made in the past by politicians or journalists, and that Mr Le Pen himself had been convicted several times of incitement to racial hatred.
16.  In a judgment of 13 September 2000, the Paris Court of Appeal (Eleventh Division, consisting of Mr Charvet, President, Mr Blanc and Mr Deletang) upheld the judgment of 11 October 1999 as regards the defamatory nature of three out of the four passages taken into account by the Criminal Court, together with the fines imposed and the damages awarded by that court.
17.  In its judgment the Court of Appeal considered, firstly, that the work in question was a “novel”, “a ‘creation of the imagination’ as defined by the Petit Robert dictionary”, whose story line was constructed around the dilemma facing the main character: “The author has developed a plot, based on that framework, running from the beginning of the proceedings against the young defendant until his suicide in prison before counsel’s address and the prosecution speech, and has given expression to many characters who mainly appear as stereotypes characterised by their moral or political position in relation to the civil parties, who themselves are explicitly real people.” It further observed that Mr Le Pen and the Front National, both appearing under their real and current identities, were constantly at the forefront not only of the debate conducted in open court but also of the exchanges between the various characters, “and even at the heart of the intimate contradictions facing the main protagonist”. The court then noted that, on a number of occasions, words had been put into the mouth of Mr Le Pen, who “express[ed] views that [were] close or identical to those [that he took] in reality, but which [had not been] regarded by the civil parties as impugning his honour and reputation or those of the party of which he [was] the leader”. It further considered that the subject of the book was the question set out on the back cover, “How can Jean-Marie Le Pen be fought effectively?”, adding that “to ask that question, even in a novel, [was] not per se defamatory against him”.
18.  The court went on to point out that section 29 of the Act of 29 July 1881 defined defamation as “any statement or allegation of a fact that impugns the honour or reputation of [a] person” and that the law made no distinction based on the nature of the writing in issue. On that basis, any writing, whether political, philosophical, novelistic or even poetical, was governed by the applicable rules in such matters, with regard both to public order and to the protection of individuals. However, the court added that “the application of the rules on defamation in respect of a press article or other text directly expressing the view of its author requires, if the text is a work of fiction, an examination of the question whether the civil parties are actually the individuals concerned by the offending remarks, and then of the meaning attributed by the author to the words of his characters in the light of the ideas that he expounds in reality in his work”. As to the second point – the first being manifestly established – the court found as follows: “... a distinction has to be made between the offending passages on pages 10, 86, 105, and, lastly, 136, the only extracts now to be taken into account: some of them express the view of the narrator and coincide with the author’s ideas as they emerge from the work as a whole, whilst others can be attributed only to the character making the remarks in question, in so far as the author genuinely distances himself from those remarks throughout the work, either through the narrator or by other means.”
Using that method the court ruled as follows on the four passages in question:
“1.  Page 10: ‘... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn’t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too’ [this view is attributed by the author to anti-racist demonstrators who have gathered outside the law courts].
This segment of text is preceded by another, which has not been mentioned by the civil parties: ‘For them, it’s not sufficient to call Ronald Blistier the murderer’, following the narrator’s description of the crowd of ‘anti-racists’ which assembles in front of the law courts during the trial of Ronald Blistier.
To assert that Jean-Marie Le Pen is not the Chairman of a political party but the chief of a gang of killers, and then in addition to equate him with Al Capone, is clearly defamatory, as was quite rightly observed by the court below.
There is nothing in the preceding or following sentences to suggest that any distance has been taken by the narrator – and therefore, in view of the book’s literary construction, by the author himself – from this statement, which is attributed to the demonstrators gathered outside the law courts, and which, moreover, echoes the question presented on the back cover as the subject of the book: ‘How can Jean-Marie Le Pen be fought effectively?’
This extract accordingly constitutes defamation against the civil parties. 2.  Page 86: ‘He (Blistier [the accused]) wants to frighten you, Pierrot [the lawyer]. He wants to brand you as a member of his clan: that’s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they’ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don’t try and be clever, Pierrot. I don’t want them to kill you.’
These words are spoken by the boyfriend of the lawyer, Mr Mine, the main protagonist. The speaker is giving his own explanation about the defendant’s attitude towards his counsel during the hearing, in response to a question from Mine.
This passage contains comments that are specific to the fictional character, albeit derogatory with regard to the civil parties, as observed by the court below.
Nevertheless, and contrary to the assessment of the lower court, they do not appear to be susceptible of proof within the meaning of the Act of 29 July 1881: being attributed to a fictional character, in a situation which is itself fictional, the text does not suggest that they may necessarily be regarded as corresponding to the author’s opinion.
This passage is not found to be defamatory. 3.  Pages 105-06: ‘Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt’ [here the lawyer is addressing the court].
It is clearly defamatory to accuse Jean-Marie Le Pen of ‘proffering words or assertions with racist overtones that are barely concealed at best and from behind which looms the spectre of the worst abominations of the history of mankind’.
Such an accusation is susceptible of debate as to whether or not it holds true in relation to the actual discourse of Jean-Marie Le Pen and the Front National.
The defendants cannot legitimately claim impunity for such remarks on the grounds that they derive from novelistic fiction and at the same time that they are covered by the statutory impunity concerning statements made during a judicial hearing.
The allegation by the character Mr Mine, the lawyer, that ‘what Ronald Blistier did was precisely what Jean-Marie Le Pen advocates’, following the narrator’s comment – just before the paragraph containing the passage in question – that ‘once again, everyone agrees that this trial should be that of Jean-Marie Le Pen rather than that of Ronald Blistier, otherwise it would never have had such an impact’, shows that through the remarks attributed to his main protagonist it is in fact Mathieu Lindon who is expressing himself here with reference to the civil parties.
This extract constitutes defamation against the civil parties. 4.  Page 136: After the defendant’s suicide in prison, his lawyer gives the following statement on television: ‘How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier’s suicide? Isn’t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn’t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself.’
To describe Jean-Marie Le Pen, Chairman of the Front National, as ‘a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies’, impugns the honour and reputation of the two civil parties.
This passage is part of a long television appearance by the main protagonist – the only one who, apart from his boyfriend, is portrayed in a positive light in the novel, as both characters convey, so to speak, the contradictions and values of the narrator – following the defendant’s suicide in prison.
It is evident that this speech, which takes the form of an indictment, and which is presented as the only interview given to the media by the lawyer, who has previously turned down many other requests, constitutes both the synthesis and the final conclusion through which the author seeks to give his character an opportunity to express, with a certain solemnity in the context of this fiction, the author’s own view as a militant writer.
Moreover, in the last two pages of the book, following the television statement, no distance whatsoever is introduced between the narrator and the remarks made.
This extract thus constitutes defamation against the civil parties.”
19.  The Court of Appeal further dismissed the argument that the applicants had acted in good faith, on the following grounds:
“Defamatory allegations are deemed to have been made in bad faith unless the defendant can show that they fulfil all of the following conditions: they must correspond to the pursuit of a legitimate aim; they must not reflect any personal animosity on his part towards the civil party; there must have been a serious preliminary investigation; and the language used must be dispassionate.
In the present case, the legitimacy of the aim pursued by the defendants through the novel, namely ‘to fight against Jean-Marie Le Pen effectively’, in other words to engage in a political combat, cannot be challenged in a democratic society.
With its claim to be a ‘combative’ work, the novel in question, and in particular the passages found to be defamatory, attest to patent animosity towards the civil parties. However, that animosity is explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as Chairman of the Front National. That animosity, which is not directed against the civil party in person, cannot be regarded as reprehensible per se.
Since this is a work of fiction, the question of the seriousness of the investigation underpinning the work cannot be assessed as if it were a text intended to inform the reader of real facts or comment on such facts. However, the principle adopted for the construction of the work in issue, as can be seen explicitly from a reading of the text and as the defendants have asserted before the court, is based on the juxtaposition within an imaginary plot of, on the one hand, various fictional characters, and on the other, the Chairman of the Front National, a real figure, who represents the focus in relation to which the imaginary characters take shape and around which they revolve throughout the novel.
Furthermore, the ideas, rhetoric, acts and gestures of Jean-Marie Le Pen are accurately described in the novel – as the defendants have claimed, producing cogent evidence to that effect – in relation to the reality of the various public manifestations of his political activity. Accordingly, it is appropriate to examine whether the use of the defamatory comments chosen by the author was preceded by an investigation sufficiently serious to justify the comments in question.
In this connection, whilst the rhetoric and ideas attributed to the civil parties, together with the ensuing debates, are unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants have failed to adduce any specific evidence to show that the use of the wording found to be defamatory was preceded by basic verification as to the reality supposed to be evoked by that wording.
Similarly, it cannot be said that the form of expression used in the three extracts found to be defamatory is sufficiently dispassionate: to liken Jean-Marie Le Pen to the ‘chief of a gang of killers’ (page 10), to assert that the murder committed by Blistier – a fictional character – was ‘advocated’ by Jean-Marie Le Pen – a real person – and to describe the Chairman of the Front National – a real person – as a ‘vampire who thrives on the bitterness of his electorate, but sometimes also on their blood’, clearly oversteps the permissible limits in such matters.
It cannot therefore be accepted that the defendants acted in good faith.
Lastly, the argument derived from the application of Article 10 of the European Convention on Human Rights and the Lingens v. Austria judgment of 8 July 1986, whereby ‘a value-judgment made about a politician is by nature not susceptible of proof’ is ineffective.
The allegations found in the present case to be defamatory, directed against a real politician, do not merely constitute value-judgments within the meaning of the judgment of the European Court of Human Rights cited above, in a case where a journalist had described the conduct of a politician as ‘the basest opportunism’, ‘immoral’ and ‘undignified’. In Mr Lindon’s case, he accuses the civil party of certain concrete practices (describing him as the ‘chief of a gang of killers’, ‘advocating the perpetration of a murder’ and ‘a vampire who thrives on the bitterness and the blood of his voters’).”
20.  In a judgment of 27 November 2001, the Court of Cassation dismissed an appeal on points of law lodged by the first two applicants. It rejected as follows the ground based on an alleged breach of Article 10 of the Convention:
“... In finding the defendants guilty of public defamation against a private individual, taking into account three extracts from the work, the judges, who made an accurate assessment of the meaning and significance of the offending writings, justified their decision without breaching the Convention provisions referred to in the ground of appeal.
Whilst Article 10 of the Convention ... recognises, in its first paragraph, that everyone has the right to freedom of expression, that provision states, in its second paragraph, that the exercise of this right, carrying with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation of others. ...”
21.  In its edition of 16 November 1999, in a column entitled “Rebonds” (“reactions”), the daily newspaper Libération published an article signed by ninety-seven contemporary writers concerning the first two applicants’ conviction, on charges of defamation and complicity in defamation, by the Paris Criminal Court in its judgment of 11 October 1999 (see paragraph 14 above). The article took the form of a petition and read as follows:
“Petition. The passages from the book ‘Jean-Marie Le Pen on Trial’ for which Mathieu Lindon and his publisher were convicted are not defamatory. We are prepared to write them in a novel. We will write against Le Pen.
Novels cannot be granted unlimited rights. But they have the right to exist and to evoke the real world in which the author and his peers live. Mathieu Lindon and his publisher Paul Otchakovsky-Laurens were convicted of defamation against Jean-Marie Le Pen on account of four passages in the novel ‘Jean-Marie Le Pen on Trial’.
To write, in a novel, that demonstrators who pay tribute to the victim of a racist murder consider that: ‘For them, it’s not sufficient to call Ronald Blistier the murderer; an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn’t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too’ is not defamatory in my view and I am prepared to write this in a novel.
To write, in a novel, that the boyfriend of a lawyer defending a murderer who belongs to the Front National gives the lawyer this warning: ‘He wants to frighten you, Pierrot. He wants to brand you as a member of his clan: that’s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they’ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don’t try and be clever, Pierrot. I don’t want them to kill you’ is not defamatory in my view and I am prepared to write this in a novel.
To write, in a novel, that a lawyer, in defending his client who is accused of a racist crime puts the following arguments to the court: ‘Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt’ is not defamatory in my view and I am prepared to write this in a novel.
To write, in a novel, that a lawyer who has poorly defended his client, a Front National member accused of a racist murder, makes the following analysis: ‘How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier’s suicide? Isn’t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse the democrats of the alleged murder of Ronald Blistier? Because he isn’t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself’ is not defamatory in my view and I am prepared to write this in a novel.
If these passages are to be considered defamatory in a novel, they are also defamatory in reality. I should be sued by Jean-Marie Le Pen and convicted by a court, if they are true to their own logic, for having reproduced those extracts here.”
22.  It was on account of the above article that Mr Le Pen and his party summoned the third applicant to appear before the Paris Criminal Court in his capacity as publication director of Libération, alleging that he had committed the offence of public defamation against a private individual (under sections 29(1), 32(1) and 42 of the Freedom of the Press Act of 29 July 1881).
23.  In a judgment of 7 September 2000, the court found the applicant guilty of the criminal offence of defamation and sentenced him to pay a fine of FRF 15,000 (EUR 2,286.74). It also awarded FRF 25,000 (EUR 3,811.23) in damages.
The court, after observing that Libération had reproduced in extenso passages from the work that it had characterised as defamatory in its judgment of 11 October 1999, found that “the defamatory nature of the remarks, which ha[d] already been found to have impugned the honour and reputation of another and ha[d] been repeated in the offending article, [was] ... not in doubt”. As to the question of good faith, the court found that, whilst the newspaper Libération was entitled to comment on a judicial decision and to impart ideas and information on questions that formed the subject of public debate, it was nevertheless true that there was “a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms”. In the court’s view, the publication of the defamatory passages in abstracto, outside their literary context, strengthened the dishonouring force of the allegations, which were shifted to the terrain of reality and plausibility, without any debate of ideas, as the signatories of the article had emphasised in concluding: “If these extracts are to be considered defamatory in a novel, they are also defamatory in reality.” The court added that other newspapers had reported on the debate triggered by the publication of “Jean-Marie Le Pen on Trial” and the petition following the conviction of its author but had not reproduced the offending comments in extenso. It inferred that the third applicant “could ... have reported on the offending petition and informed readers of the views of numerous writers and journalists, without, however, reiterating the offence of which Mr Lindon and his publisher had been convicted by reproducing the passages that had been found to be defamatory in the court’s previous decision”.
24.  On 12 September 2000 the third applicant lodged an appeal against the judgment. He contended that the impugned article was part of a broader political debate concerning the Front National and its Chairman, and that the debate was intense because of events that had actually taken place. It was those events which had provided the inspiration for the novel by the first applicant, whose cause had been defended by the signatories of the petition, reacting in a democratic spirit and out of vigilance towards the far-right movement. The third applicant explained that the column “Rebonds” was specifically reserved for the opinions of commentators from outside the newspaper who expressed their views with the intention of triggering debate and provoking reactions among readers. He added that the column, in principle, was not supposed to be objective or impartial but to convey opinions and therefore entailed the freedom to hold those opinions. He argued that the free discussion of political matters should not be hindered by excessive requirements relating to the protection of the rights of others or the prevention of disorder.
25.  In a judgment of 21 March 2001, the Eleventh Division of the Paris Court of Appeal (consisting of Mr Charvet, President, and Judges Deletang and Waechter) upheld all the provisions of the judgment under appeal.
The court pointed out that, in its judgment of 13 September 2000 (see paragraphs 16-19 above), it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article, referred back to the grounds set out in the 13 September 2000 judgment, of which, it stated, the reasoning “remain[ed] applicable”. It went on to dismiss the defence of good faith on the following grounds:
“The existence of controversy surrounding Mr Le Pen and the Front National has been patent for many years, and that controversy has taken on a polemical aspect at certain times.
As regards the work ‘Jean-Marie Le Pen on Trial’, the court found in its previous judgment that it was established that its very subject matter was the fight against the political ideas of the civil parties, which in this case had taken the form of a novel.
Such a medium does not preclude the application of the Act of 29 July 1881 where, firstly, the characters portrayed can be identified as real people, and, secondly, the defamatory allegations against them are a reflection not of the narrative process but of the author’s own views.
On the basis of that analysis, the court considered that this situation obtained in respect of the novel itself. It is all the more true for the impugned article, which is presented as a shift from fiction in two ways, being published even though the passages in question had formed the basis of a conviction and by clearly indicating that shift: ‘If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen.’
The authors of the text in issue had no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks.
The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘chief of a gang of killers’ or as a vampire.
The defence of good faith cannot be admitted ...”
26.  On 23 March 2001 the third applicant appealed on points of law, claiming in particular that there had been a violation of Articles 10 and 6 of the Convention. In respect of Article 6 he contended that the Court of Appeal had already ruled on the defamatory nature of the book in question and that it had relied on that earlier judgment, so that the appeal had not been heard by an impartial tribunal but by a “court which openly regarded itself as clearly targeted by the offending article”.
27.  In a judgment of 3 April 2002, the Court of Cassation dismissed the appeal in the following terms:
“... It is apparent from the decision appealed against that Serge July, publication director, was summoned to appear before the Eleventh Division of the Court of Appeal on a charge of public defamation against a private individual, on account of having published an article. That article incorporated certain passages from a book for which the author had previously been found guilty under section 29 of the Act of 29 July 1881 by a bench of the Court of Appeal consisting of President Charvet and Judges Blanc and Deletang.
The appellant is not entitled to complain that Judges Charvet and Deletang sat on the bench of the appellate court before which he appeared, in so far as the participation in this case of a number of judges of the criminal division of the Court of Appeal in proceedings concerning charges brought, firstly, against the author of a defamatory text and, secondly, against the publication director who allowed certain passages from that text to be published, is not contrary to the requirement of impartiality enshrined in Article 6 § 1 of the Convention. In addition, contrary to what has been alleged, there is nothing in the judgment appealed against to suggest that the judges deemed themselves to be targeted by the offending text or that they expressed an opinion contrary to the requirement of impartiality.
... In finding Serge July guilty ... the Court of Appeal stated that the polemical aim of a text could not absolve it from all regulation of expression, when, far from being based merely on an academic debate, its line of argument was built around reference to precise facts. The court added that, in this case, the accusations that had been made without a meaningful prior investigation were particularly serious ones, the civil party having been described as the ‘chief of a gang of killers’ or as a vampire.
In these circumstances the Court of Appeal justified its decision without breaching Article 10 of the Convention ...”